Welcome to Scribd, the world's digital library. Read, publish, and share books and documents. See more ➡
Download
Standard view
Full view
of .
Add note
Save to My Library
Sync to mobile
Look up keyword
Like this
1Activity
×
0 of .
Results for:
No results containing your search query
P. 1
Evidence Outline 2-27-12 Recovered Last Version

Evidence Outline 2-27-12 Recovered Last Version

Ratings: (0)|Views: 172|Likes:
Published by Brandon Reisman

More info:

Published by: Brandon Reisman on Apr 09, 2012
Copyright:Attribution Non-commercial

Availability:

Read on Scribd mobile: iPhone, iPad and Android.
download as PDF, DOCX, TXT or read online from Scribd
See More
See less

05/10/2012

pdf

text

original

 
Downloaded From OutlineDepot.com
1
I.
 
Why Have Rules of Evidence?A.
 
Judges/Society
don’t trust juries
: don’t believe juries can evaluate out of court statements or dismiss information once given
 B.
 
Related substantive policies:
To achieve substantive goals in litigation (who wins)C.
 
Unrelated substantive policies:
To achieve goals outside litigation (privilege allows communication)
D.
 
Make fact finding accurate:
E.
 
Save resources AND control scope Duration
of trials
F.
 
Appearance and Validity:
important for trials to appear valid- create appearance and realibility
 
1.
 
To make results
seem acceptable
to public, even though they are not2.
 
Want litigants to
think 
system if fair (even if not)II.
 
What Happens in a trial?A.
 
Lawyers/Judge select the jury
Opening Statement (PL goes first)- gives summary of what evidence will show/prediction
 
D’s Opening statement
 B.
 
P’s Case in Chief 
- Puts on evidence/witnesses
P rests
 C.
 
D Puts on her case in Chief 
 D.
 
P gets rebuttal
D gets to rebut
 E.
 
Closing Arguments- reaffirms opening and also what the evidence did not show
 F.
 
Judge instructs jury on the law (instructions proposed by each side)
jury deliberation
verdict
 G.
 
Court enters judgment
post trial motionsH.
 
Appeals
:
TEST
: must show an error and that it would have affected the outcome of the case
a.
 
Reversible error
--Need to show there is
reversible error
- error that is so important that it requires reversal
 i.
 
Did the error probably affect the result?
 (a)
 
If yes? There is reversible errorb.
 
Harmless error-
error that causes no harm to the outcome of the case
 c.
 
Plain error:
court may take notice even if not objected to or offered proof 
 i.
 
You can argue plain error (rare)- the error was so plain that anybody would
 
d.
 
 
Ex: Co-party plaintiffs vs. D. D puts on police officer saying plaintiffs were speeding. Counsel for P1 objects to thewitness as an expert. D wins. P2 appeals and D argues appeals should be dismissed for his failure to object in courtbelow(a)
 
Doesn’t matter who objects
as long as one doesIII.
 
Judicial ―Mini
-
Hearings‖
 A.
 
Who decides evidence Q’s, e.g. whether witness was excited when he spoke.
B.
 
FRE 104(a)
 
Judge
decides questions of admissibility
; determines ―preliminary questions‖
 
1.
 
Examples:
a.
 
Simple relevancy
(not contingent based on establishment of a fact)b.
 
Witness competency
qualifying an expertc.
 
Privilege
atty-client; spousald.
 
Admissibility of evidencee.
 
Hearsay doctrine [
mostly
]
 
2.
 
 Judge NOT bound by rules of evidence
when determining admissibility (104a) [
except privileges
]3.
 
PREPONDERANCE STANDARD
of evidence (more likely than not) [
 Bourjaily
]a.
 
Example
Can a textbook be offered as proper, was someone excited when they spoke (both involve the hearsaydoctrine)i.
 
If the evidence is admitted, it can still be rebutted by the opponent at trial
 
C.
 
FRE 104(b)
 
Jury
decides
 
preliminary questions of fact
 1.
 
When ―relevancy‖ turns on ―fulfillment of a condition of fact‖
 2.
 
When different answers are possible based on the evidence
Judge merely screens the evidence & jury decides
conditional relevancy
 a.
 
Jury decides whether the condition is satisfied
evidence that is conditionally relevant is
admitted subject to the
 
introduction of sufficient other evidence
to support a finding by the jury that the condition is satisfied (prima facieshowingb.
 
Factual issue of whether the necessary condition has been met to allow evidence in3.
 
LOWER STANDARD OF PROOF
 
 Need enough evidence to enable a reasonable jury to come to a conclusion4.
 
If the evidence is admitted, it can still be rebutted at triala.
 
Examples OF SITUATIONS WHERE THE JURY DECIDES
:i.
 
Authentication of evidence
a matter of conditional relevancyii.
 
Personal knowledge of a witness
 
Downloaded From OutlineDepot.com
2
iii.
 
Connecting a weapon to the crime. Whether a gun is connected to a murder scene is an issue of authentication,which is treated as a matter of conditional relevancy decided by juryiv.
 
Certain hearsay issues:(a)
 
Whether a party ―adopted‖ a statement made by another 
 (b)
 
Whether a person making a ―dying declaration‖ actually knew he was dying
 IV.
 
Presenting Evidence
A.
 
Through Witnesses: TESTIMONY
1.
 
Direct Examination
- by party offering the testimonya.
 
PL lays foundation- shows witness knows something about his/her testimonyb.
 
Kinds of Questions;i.
 
Leading questions
- a question that communicates the answer that is sought/Q that suggests an answer(a)
 
 
Not allowed
during
direct
examination(i)
 
Always prepare the witness in advance/never ask if you don’t know answer 
 (b)
 
BUT, they are
 allowed 
on
cross
 
examinationii.
 
Scope of Direct Rule (Rule 611bp.17)
 
(a)
 
Cross examination should be limited to:(i)
 
The subject matter of direct examination and
(ii)
 
Matters of credibility of the witness
 a.
 
But judge has discretion to allow info not presented during direct (rare)b.
 
Any information not presented during direct can be elicited by D calling again later during the def presentation of the case
(b)
 
Tests of Scope of Direct Evidence
(i)
 
Points Raised on Direct
: must address same points (
 
majority)(ii)
 
Transaction Described
: much broader (minority)- cannot be
before/after 
 (c)
 
Problem1Ap.25: B&D has accident with F. F is defendant. B
sues F. B (PL) calls D (witness) who says ―Fran red light‖ on direct.
 
(i)
 
Isnt it true you are legally blind Mr. D?
a.
 
Can be asked b/c credibility of the witness (if blind
liar
impeaches testimony)
(ii)
 
Mr. D, you and B (PL) are dating aren’t You?
 
a.
 
Beyond the scope but may also to credibility of witness (potential bias, incentive to lie)
(iii)
 
Isn’t it true Mr. D, that B (PL) turned and was looking out back window?
 
a.
 
Subject of Direct testimony
was color 
of light, not what B was doingi.
 
Does not pass Points on Direct, but probably passes Transactionb.
 
Credibility? If you could answer the Q
then how could you see what color the light was
goesto credibility****
(iv)
 
Isn’t it true B had been drinking?
 
a.
 
Credibility? Does it show a social bond between the witness? (a bit strained b/c already admittedthey had been dating
 —judge wouldn’t let in)
 b.
 
Scope of direct?i.
 
Points on direct
would not allow this Q (nothing to do with light)ii.
 
Transaction Described Test
: would not allow b/c has to do with
before
 
 
(d)
 
 Problem 1B-
he didn’t object 
- as long as the other side objected then you are ok.
a.
 
Two Ps and 1 D. One of the P’s attorneys objects but the other doesn’t. Can theattorney who didn’t object appeal?
 i.
 
Answer
 
Probably yes, because at least someone did object and the court +adversary were put on notice that there was a potential problem
 ii.
 
Shephard: DREEVES should be ok, normally you have to object to preservethe issue on appeal, but the other lawyer objected, and one lawyer objecting isenough
 
(ii)
 
Motion to Strike:
 
a.
 
Improper evidence has been introduced (a witness just blurts something out that’simproper) and you didn’t have a chance to object before
 i.
 
Can ask for a mistrial if you think the jury has been completely tainted
 
 
Downloaded From OutlineDepot.com
3
ii.
 
If not, judge could grant a motion to strike and instruct the jury not to considersomething they heard in their deliberation
 
V.
 
Admitting Real Evidence
 
(things, including demonstrative evidence)
 
1.
 
Laying a Foundation
‖ = authentication
 a.
 
Foundation: information produced that must show evidence is what proponent says it isb.
 
Processi.
 
Mark for identification (give to clerk of court) as piece of evidence
evidence/authentication offered
Ddebates
admitted/not2.
 
Keeping evidence Out:
Objections
 a.
 
If let in
jury can consider; if not
jury cannot consider
 
i.
 
Requirements
 (a)
 
Objection must be on the record and state the ground(b)
 
Timely
: After the question, but before answer(i)
 
If answered: motion to strike or motion for new trial
(c)
 
State Ground
b.
 
Must Object
 at time
presented
(
timely objection
)i.
 
Cannot object later in the trial! This means many valid objections will go ignoredii.
 
For an appeal later, object nowiii.
 
Why? Help the judge (adversarial system); allows adversary to fix the problemc.
 
2 Kinds of Objectionsi.
 
Substantive
: based on evidence itself (hearsay, Best Evidence Doctrine, privileges, character evidence)ii.
 
Formal objection
:nothing wrong with the substance, but the Q is being asked in the wrong way (form of Q)-list on CB p.31
(a)
 
Asked and Answered; Assumes facts in evidence; Argumentative; Compound, Leading the Witness,Misleading, Speculation/Conjecture, Ambiguous
(b)
 
Be careful with these b/c lawyer will get info anyway in another way!
iii.
 
General Objection
: When the judge excludes evidence under a general objection, even on a mistaken theory,the ruling is usually upheld if excluding the evidence was right for any reason at all.
 
iv.
 
Motion in Limine
: motion
before
trial to get a ruling then by judge that evidence cannot be introduced(a)
 
May force settlement if important evidence is forced out(b)
 
If you sleep: adversary can get someone on the stand and say something before you have a chance to objector discount credibility
would then
motion to strike
but jury would not be able to really get testimonyout of their heads
 — 
you cant MAKE THE JURY FORGET YOU SHOWED THEM A BLUE HORSEd.
 
The Offer of Proof (FRE 103(a)(2))
 i.
 
If objection is sustained to exclude evidence,
you must make offer of proof to preserve right to appeal
 ii.
 
Must make it known to court what would have been presented if objection overruled(a)
 
On the record out of presence of jury (appeal granted only if would have affected outcome of case)(b)
 
―if admitted, this piece of evidence would show…….‖
 e.
 
 
Who Decides Objections
?i.
 
The judge:
 judge does decide factual issues
 ii.
 
Rulings on Evidence:Rule 103(RB p.40)
iii.
 
Rule 104(a)(a)
 
Questions of admissibility generally
(i)
 
Example of Fact finding: Judge decides hearsay exception of excited utterance (this is a Q of factdecided by the judge, not the jury); Preponderance of evidence(b)
 
Relevancy Conditioned on Fact
(104(b))(i)
 
When the relevancy of evidence depends upon the fulfillment of a condition of fact (weapon onlyrelevant if murder weapon), court will admit
if a
 reasonable jury
can find it fulfills the condition (it isthe murder weapon)(ii)
 
Ex: If you have 1 witness saying it is the gun and 3 saying it is not
this is admittable (only need 1reasonably credible witness!)
jury decides in the endf.
 
Authentication
:
must provide prima facie evidence- evidence such that a reasonable jury could find theevidence is what purports to be
(don’t have to
 prove
it)
 — 
this is
conditional relevancy
 3.
 
To get Ina.
 
Stipulation and AdmissionsI.
 
Authentication
((p.849)-
Rules of 104(b)
repeated in 901-903

You're Reading a Free Preview

Download
/*********** DO NOT ALTER ANYTHING BELOW THIS LINE ! ************/ var s_code=s.t();if(s_code)document.write(s_code)//-->